Patent Data Missing in Troll Debate

This is the first of a series of on-going stories exploring the current debate about the US patent system.

SAN JOSE, Calif. — While the US Congress debates legislation aimed at addressing a troubling increase in patent infringement suits from so-called trolls, experts are debating whether the rise even exists or should trouble anyone.

A handful of studies and papers say patent cases are not rising significantly. The non-practicing entities (NPEs) that assert patents but do not make products are not playing a destructive role, they argue. However, some experts say more data still needs to be collected.

"Right now it's like the fear of the unknown -- we actually don't know that much about patents despite a large amount of study," says Daniel F. Spulber, research director of Northwestern University's Searle Center on Law, which received a $2 million grant from Qualcomm that's funding a five-year research project.

The program is focusing on so-called "standards-essential" patents from the top three of an estimated 700 standards organizations that release thousands of technical standards a year. "What I hope to do is create as comprehensive a database as is feasible. Then empirically analyze the standards and organizations and make that data available for free to academic researchers," says Spulber.

"We've barely begun to scratch the surface of what we need to know, so policy makers should probably not rush to judgment."

However, he does have his own opinions. "I do not believe there is a problem with patent suits and NPEs in particular -- there's no evidence, and even people who [say there is] are relying on horror stories and anecdotes."

Most patent trolls send letters warning of dire consequences with an offer to settle. The settlement amount is purposely calculated to be "just below the cost of an effective defense". Few people challenge the trolls in court, and the trolls do their best to avoid going to court. They make their money from the ransom demands, not through lawsuites. It does not appear that any of this activity will show up in this study.